Juvenile Injustice: Why Expungement Matters

Should the skirmishes and indiscretions of childhood determine your education and employment prospects for the rest of your life? This is the question the Massachusetts legislature will return to discuss when it resumes its session in 2017. As of the end of the 2016 legislative session – which was July 31, 2016 – a slate of bills1, 2 aimed at promoting restorative justice within the Massachusetts criminal justice system remained in committee. One important aspect of this discussion about justice reform is the debate over the expungement of juvenile records.

Expungement means the “permanent erasure or destruction” of records such that any public or private investigation into a person’s criminal history reveals that no record exists3. This is different from the act of ‘sealing’ records, which merely limits access to the information, rather than destroying it completely. The disclosure of a sealed record to select individuals or agencies– e.g., law enforcement, potential employers, or private citizens – is determined at the state level4. As do many states, Massachusetts has statutes in place to prevent employee discrimination resulting from sealed records5. However, only expungement can ensure these protections, and the Commonwealth is one of 19 states that deny citizens the right to expungement of juvenile records6.

In practice, this distinction leads to stories like that of Ashlie Tyler. As the Boston Globe reported in July, Tyler, a high-school valedictorian and Duke University alumna with an impressive employment history working with at-risk youth, almost had her career derailed at 28 when a potential employer ran a background check. Despite her record being sealed, the sheer fact that it existed at all – never mind that her transgression was a charge for assault and battery during a fight when she only was 12 years old – was enough to cause the potential employer to cast her stellar career into doubt over a mistake she made when she was a pre-teen.7

Tyler’s story is by no means an anomaly. In the current economy, employment prospects for young adults are uncertain at best, but especially so for youth in disadvantaged environments, who are more likely to acquire criminal records. It is highly damaging to give educational institutions or potential employers access to the fact that a record exists — studies indicate that “a large majorities of employers [who hire for low-skill or entry-level positions] are unwilling to hire [an applicant] with a criminal record”8.

In addition, young black males in urban settings are disproportionately affected. According to Harvard sociologist William Julius Wilson, in a modern job market, which emphasizes the importance of service-sector positions and face-to-face customer relations (as opposed to the traditional importance of manufacturing jobs and capability for physical labor), cultural biases skew employment prospects in ugly ways. Women and immigrant groups are favorably viewed as acceptable candidates for service-sector roles; however, young black males are perceived “as dangerous or threatening”.9 In conjunction with evidence of trouble with the law, these perceptions can serve as an economic and educational death-sentence for the next generation of workers.

Opponents to expungement cite public safety concerns, claiming “the fact [that someone] committed an offence says something about them as a person” and is therefore relevant to decision making10. Reluctance to hire someone with a criminal record may sound reasonable, but overwhelming evidence suggests that juveniles should be exempted from such long-term consequences for records acquired in adolescence.

The way Commonwealth law treats juveniles makes it clear they already make some considerations for youth. According to Massachusetts statute (and with the exception of certain instances of serious criminal behavior), juveniles are categorically separated from the criminal justice system because they deserve treatment “not as criminals, but as children in need of aid, encouragement, and guidance”. Furthermore, Commonwealth v. Eric Anderson asserts that “a permanent record that interferes with an individual’s access to education and employment decades later undermines the rehabilitative purpose of juvenile court proceedings by attaching precisely the stigma that our juvenile court system is intended to avoid”.11 This protective attitude towards minors — and the consequent statutory protections — is further bolstered by scientific evidence that the mental development period for young people extends into their 20s12.

As a final point, 95% of juvenile offenders are nonviolent, and fully “two-thirds of adolescents with an arrest record are never arrested as adults”13. Surely a system that judges young adults as criminals based on their adolescent record must be considered itself criminal.

Only the words “no record” are sufficient to ensure that young adults are given the opportunity to succeed, and expungement is the only method to accomplish them.